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Unforgiving of Those Who Trespass Against U.S.: State Laws Criminalizing Immigration Status

Since around 2005, states and localities have been using criminal trespass laws to target undocumented immigrants for unlawful presence. Specifically, in April 2010, Arizona passed SB 1070: Support Our Law Enforcement and Safe Neighborhoods Act. SB 1070 creates crimes involving trespassing by “illegal aliens” and harboring or concealing unlawful aliens. This paper argues that state trespass laws that criminalize unlawful presence of immigrants are unconstitutional regulations of immigration and are a preempted exercise of state power. In evaluating the constitutionality of state trespass laws that criminalize immigration status, this paper proceeds in three parts. The first part of the paper details how as a sovereign nation, U.S. laws have excluded undesirable categories of people from admission and have attempted to criminalize specific immigration violations. The second part explains and critiques the sections of SB 1070 that create separate state criminal offenses for violating federal immigration laws - namely unlawful presence or criminal trespass. The third part analyzes the constitutionality of the criminal provisions of SB 1070 that make it a state crime to be unlawfully present in the state in relation to specific provisions of the INA and federal immigration policy. The paper concludes that state trespass laws that criminalize unlawful presence of immigrants and attempt to delegate immigration enforcement to state officials are unconstitutional regulations of immigration and are therefore a preempted exercise of state power.